REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NO.6385 OF 2010 SURAJ BHAN MEENA & ANR. VERSUS STATE OF RAJASTHAN & ORS. WITH SLP(C)NOS.7716, 7717, 7826, 7838 of 2010 ... RESPONDENTS ... PETITIONERS

JUDGMENT

ALTAMAS KABIR, J. 1. Since common questions of fact and law are

involved, five Special Leave Petitions have been taken up for hearing and final disposal together.

2 While SLP(C)No.6385 of 2010 has been filed by Suraj Bhan Meena & Anr., SLP(C)Nos.7716, 7717, 7826 and 7838 of 2010, have all been filed by the State of Rajasthan. 2. All the petitioners are aggrieved by the

judgment and order dated 5th February, 2010, passed by the Jaipur Bench of the Rajasthan High Court in D.B. Civil Special Appeal (Writ) No.618/2009 filed by the State of Rajasthan & Anr. against Bajrang Lal Sharma & Ors., D.B. Civil Special Appeal (Writ) No.3/2010 filed by Suraj Bhan Meena against Bajrang Lal Sharma & Ors., D.B. Civil Special Appeal (Writ) No.611/2009 filed by the State of Rajasthan against Gyan Prakash Shukla, D.B. Civil Special Appeal

(Writ) No.610/2009 filed by the State of Rajasthan against M.M. Joshi, D.B. Civil Writ Petition & Ors.

No.8104/2008

filed by Bajrang

Lal Sharma

against the State of Rajasthan & Ors., D.B. Civil Writ Petition No.6241/2008 filed by Gyan Prakash Shukla & Anr. against the State of Rajasthan & Ors.

3 and D.B. Civil Writ Petition No.7775/2009 filed by M.M. Joshi against the State of Rajasthan & Ors. As indicated hereinbefore, all the matters were

heard and disposed of by a common judgment passed by the Division Bench on 5th February, 2010. While considering the writ petitions along with the writ appeals, the Division Bench referred to the facts of D.B. Civil Writ Petition No.8104/2008, against which SLP(C)No.6385/2010 has been filed by Suraj Bhan Meena and SLP(C)No.7716/2010 has been filed by the State of Rajasthan. The other Special Leave

Petitions have been filed against the orders passed in the Writ Petitions filed by the private

respondents therein. 3. All the writ petitioners, as also the

Petitioners in SLP(C)No.6385/2010, are members of the Rajasthan by 1954. writ Administrative the Rajasthan Service and are Service in their the

governed Rules,

Administrative

The writ petitioners petitions challenged

respective

4 Notification dated 25th April, 2008, issued by the State of Rajasthan by the of Service in proviso India Rules" exercise of its 309 powers of the

conferred Constitution "Various 28.12.2002. 4. been

to Article amending with the

Rajasthan from

effect

According inducted

to in

the the

writ

petitioners,

they

had

Rajasthan

Administrative

Service in December, 1982, through selection by the Rajasthan Public Service Commission. dated 26th June, 2000, the State Government issued a Provisional Administrative 1.4.1997, Bajrang Meena in Lal Seniority Service which Sharma, the List of Rajasthan Grade as No.1, Suraj Bhan on Vide notice

Selection Writ

Petitioner above Sriram

was placed Tribe) The and

(Scheduled Caste).

Choradia List was

(Scheduled

said Seniority

published pursuant to the order of this Court dated 16.9.1999, passed in the case of Ajit Singh-II & Ors. Vs. State of Punjab & Ors. [(1999) 7 SCC 209]

5 and another order of the same date in the case of Ram Prasad vs. D.K. Vijay [(1999) 7 SCC 251]. again Provisional Seniority Lists were published on 27.11.2003 and 12.5.2008. Subsequently, the State Once

of Rajasthan published the final Seniority Lists of Super Time Scale and Selection Scale of the service on 24.6.2008 as on dated 1.4.1997 and 2.7.2008 as on Provisional 1.4.2008,

Seniority List

wherein the name of Bajrang Lal Sharma was shown below the names of both Suraj Bhan Meena and Sriram Choradia. 5. The Notification dated 25.4.2008, which was the

subject matter of challenge in the Writ Petition was challenged on two grounds. It was firstly

contended that the proviso dated 28.12.2002, which had been added to the Various Service Rules was subject to the final decision of this Court in Writ Petition (Civil) No.234/2002 filed by the All India Equality Forum against the Union of India & Ors., but the same was yet to be decided. Therefore,

6 during the pendency of the Writ Petition before

this Court, the Respondents had acted improperly in deleting the above-mentioned proviso in the Various Service Rules by the Notification dated 25.4.2008, which amounted to giving a consequential seniority to candidates belonging to the Scheduled Castes and Scheduled Tribes, which could not have been given without quantifying the figures of Scheduled Castes and Scheduled to be Tribes arrived candidates at that to enable was a

decision

reservation

required in promotion and also to show that the State had to such pass such as, orders for compelling inadequacy of

reasons,

backwardness,

representation, as held by this Court in the case of M. Nagaraj & Ors. vs. Union of India & Ors. [(2006) 8 SCC 212]. the State Government It was contended that since had not complied with the

directions given by this court in M. Nagaraj's case (supra), the Notification in question was liable to be quashed. It was further urged on behalf of the

7 Writ Petitioner, Bajrang Lal Sharma, that in the case of Indra Sawhney & Ors. Vs. Union of India & Ors. [(1992) Supp.(3) SCC 217], this Court had held that Article 16(4) of the Constitution of India did not permit reservations in the matter of promotion. Thereafter, the Constitution (77th Amendment) Act, 1995, was enacted and came into force on 17.6.1995. The subsequent Special Leave Petitions filed by the Union of India & Ors. against Virpal Singh Chauhan & Ors. [(1995) 6 SCC 684], Ajit Singh Januja & Ors. Vs. State of Punjab & Ors. [(1996) 2 SCC 715] and Ajit Singh-II & Ors. Vs. State of Punjab & Ors. [(1999) 7 SCC 209)], introduced the "catch-up" rule and held that if a senior general candidate was promoted after candidates from the Scheduled Castes and Scheduled Tribes have been general on had promoted to a

particular would relation

cadre, his

the senior seniority

candidate in

regain to

promotion

the

juniors who

been promoted

against reserved vacancies.

8 6. The Parliament by in on 4.1.2002 amended (85th the the

Constitution Act, 2001,

the Constitution order seniority to to give the

Amendment) of

benefit

consequential candidates constitutional with

reserved 17.6.1995. both the

category The said

effect validity

from of

Constitution Amendment Acts was challenged before this court in other writ petitions, including the writ petition filed by M. Nagaraj and All India Equality Forum. petitions, protecting general/OBC Rajasthan, this the During the pendency of the writ Court passed an and The the interim seniority Government proviso added order of of

promotion candidates.

thereafter,

deleted

vide Notification dated 1.4.1997. 7. In M. Nagaraj's case (supra), this Court while the constitutional Amendment) validity Act, of 1995 the and the

upholding Constitution

(77th

Constitution (85th Amendment) Act, 2001, clarified

9 the position that it would not be necessary for the State Government in to frame rules with in respect of

reservation

promotion

consequential

seniority, but in case the State Government wanted to frame such rules in this regard, then it would have to satisfy itself by quantifiable data, that there was backwardness, in inadequacy and of overall

representation administrative

public employment and unless

inefficiency

such an

exercise was undertaken by the State Government, the rule relating to reservation in promotion with consequential seniority could not be introduced. 8. Despite the decision in M. Nagaraj's case, the

State Government by deleting the proviso, which had been inserted vide notification dated 1.4.1997 on the basis of the "catch-up" rule and further

deleting the new proviso added on 28.12.2002 in the Various Service Rules of the State, had in effect provided consequential seniority to the Scheduled Castes and Schedule Tribes candidates, without

10 undertaking the exercise indicated in M. Nagaraj's case in respect of the three conditions laid down in the said Petitioners judgment. It was the case of the dated

that the impugned notification

25.4.2008 was liable to be declared ultra vires to the provisions of the Constitution being contrary to the decision of this Court in M. Nagaraj's case. 9. As indicated hereinbefore, it was also the case of the Writ Petitioners that nowhere in Rule 33 of the Rajasthan Administrative Service Rules has any provision been made for consequential seniority to reserved category promotees. As a result, after

the judgment in B.K. Sharma & Anr. Vs. State of Rajasthan & Ors. [WLC (Raj.) 1998 (2) 583] and in Ram Prasad's case (supra), consequential seniority could not have been assigned to reserve promotees above the senior General/OBC candidates. 10. This was the view which had been taken by this Bench in the cases of Virpal Singh Chauhan (supra)

11 and Ajit Singh-I (supra) to the effect that reserve promotees would be entitled for accelerated The same

promotion, but not accelerated seniority. view was reiterated by a Constitution Bench of this Court on 16th September, 1999, while deciding Ajit Singh-II's case (supra). It is only on account of

the judgment in Virpal Singh Chauhan's case (supra) and in the case of Ajit Singh-I (supra), the State Government inserted Rules. 11. The Constitution (85th Amendment) Act, 2001 was thereafter passed on 4th January, 2002, with the vide notification in the dated Various 1.4.1997 Service

new proviso

retrospective effect from 16th September, 1995, with regard to consequential seniority to reserve

promotees. the subject

It was the said amendments which were matter of challenge in several writ

petitions, including in M. Nagaraj's case and in the case of All India Equality Forum.

12 12. On behalf of the Petitioners, it was submitted by Dr. Krishan Singh Chauhan, that the insertion of the words "with consequential seniority" in clause IVA of Article 16 of the Constitution after the words "reservation in promotion", was only an

enabling provision which was under challenge before this Court and while the matter was sub-judice,

without waiting for the decision of this Court in M. Nagaraj's case and All India Equality Forum, the State Government withdrew its earlier notification dated 1st April, 1997 vide notification dated

28.12.2002.

It has to be kept in mind that as in

M. Nagaraj's case (supra), this Court has made it mandatory on the part of the State Government to undertake the three exercises in case any rule was required to be framed by the State for reservation in promotion with consequential seniority. submitted that the withdrawal of the notification dated 1.4.1997 by notification dated 28.12.2002 It was

amounted to negating the judgment of this Court in

13 Ram Prasad's case (supra) and, accordingly, the

notification dated 28.12.2002 was also liable to be quashed by the Court. decided in this case In short, the question to be is whether the State

Government was reintroducing a concept which had been replaced pursuant to the orders passed by this Court, which had been found to be ultra vires the provisions of the Constitution. 13. It was urged on behalf of the Petitioners,

Suraj Bhan Meena and Sriram Choradia, that till the decision of this Court in the case of Indra Sawhney vs. Union of India [(1992) Supp. (3) SCC 217], this Court had almost in uniformly promotion applied with the rule of consequential

reservation seniority.

In Indra Sawhney's case (supra), this

Court had held that reservation in promotion was unconstitutional, but permitted such reservation to continue for a period of five years. It is

pursuant to the said decision in Indra Sawhney's case (supra), that the Parliament enacted the

14 Constitution (77th Amendment) Act, 1995. view was taken in Union of India vs. Virpal Singh Chauhan [(1995) 6 SCC 684], wherein it was laid down that the grant of consequential seniority in cases of reservation in promotion was illegal. issue was taken further in the case of Ajit Singh Januja Vs. State of Punjab [(1996) 2 SCC 715] The A contrary

holding that the grant of consequential seniority to reserve category on the employees, basis who had got was

promotion

of reservation,

unconstitutional. 14. On 7th May, 1997, another Bench of this Court in the case of Jagdish Lal Vs. State of Haryana

[(1997) 6 SCC 538] took a diametrically opposite view upon holding, inter alia, that equality should not remain mere idle incantation, but it had to become a vibrant living reality since equality of opportunity could not simply be judged on the merit of the marks obtained by him but by taking into account de facto inequalities which exist in

15 society and to give preference to the socially and economically disadvantaged persons by inflicting

handicaps on those more disadvantageously placed. Although such affirmative action might appear to be discriminatory, it was calculated to bring about equality on a broader basis by eliminating the de facto inequalities between the weaker sections and the stronger sections of the community and placing them on a footing of equality in relation to public employment. 15. In view of the opposite stands taken in Jagdish Lal's case (supra) the and in were Ajit Singh-I's to case the

(supra),

matters

referred

Constitution Bench which approved the decision in Ajit Singh Januja's case (supra) and Virpal Singh Chauhan's case (supra), upon holding that the case of Jagdish Lal had not been correctly decided. a result, the rule of "regain" and "catch-up" was explained rules. as the correct interpretation of the As

As mentioned hereinbefore, by enacting the

16 Constitution (85th Amendment) Act, 2001, the

Parliament constitutionally nullified the principle of "regain" and "catch-up" by enacting the

Constitution (77th Amendment) Act, 1995 under its constituent Constitution. power under Article 368 of the

It was sought to be urged by Dr.

Krishan Singh Chauhan, learned Advocate, that the power which was existing in the Government to make provision for consequential seniority in promotion of reservation, which had been eclipsed on account of the decision Chauhan's of this Court in stood Virpal Singh by the

case (supra),

revived

enactment of the Constitution (85th Amendment) Act, 2001, with retrospective effect. 16. Learned counsel for the Petitioners referred to various decisions on the doctrine of eclipse, which we will refer to, if necessary. 17. Learned counsel, in addition, contended that

the Respondents had not acquired any vested right

17 since the Constitution Amendment Acts had been

enacted by the Parliament only with the intention of nullifying the effects of the judgments of this Court in Virpal Singh Chauhan's case (supra) and Ajit Singh-II's that case the (supra). Constitution Dr. Chauhan

submitted

(85th Amendment)

Act, 2001, given effect to from 17th June, 1995, had constitutionally nullified the principle of "regain of seniority" and the principle of "catch-up" which had been explained by this Court in Virpal Singh Chauhan's case (supra). 18. Mr. P.P. Rao, learned Senior Advocate,

appearing for the State of Rajasthan, submitted at the very outset that the reliefs prayed for in the several writ petitions, which are common in the

Special Leave Petitions, praying for a direction that the benefit of reservation in promotion with consequential seniority, should not be given unless the three compelling conditions as indicated in M. Nagaraj's case (supra), were fulfilled, was totally

18 misconceived in the absence of any challenge to the order dated 10th February, 1975, passed by the State of Rajasthan providing for reservations in favour of Scheduled Castes and Scheduled Tribes candidates in promotion. Furthermore, no such prayer had been granted by the High Court. Mr. Rao submitted that the reliefs misreading (supra). 19. Mr. Rao urged that the High Court took an prayed of for was based on a complete case

the decision

in M. Nagaraj's

erroneous view that seniority is a vested right in view of the observations made in paragraph 123 in M. Nagaraj's case that the State was not bound to provide for reservation Tribes for Scheduled in matters of

Castes/Scheduled

candidates

promotions, but that if it intended to exercise its discretion and make such provision, it had to

collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to

19 compliance of Article 335 of the Constitution. Rao submitted that the High Court, Mr. however,

overlooked the opening part of the judgment which indicated that the main issue involved the extent of reservation. Court erred in Mr. Rao submitted that the High proceeding on the basis that

seniority in Government service is a vested right, since it is now well settled that the seniority of a Government servant can be interfered with by the State by making a Rule under the Proviso to Article 309 of the Constitution. referred to and relied In this regard, Mr. Rao on the decision of this

Court in S.S. Bola & Ors. Vs. B.D. Saldana & Ors. [(1997) 8 SCC 522], and T. Narasimhulu & Ors. Vs. State of A.P. & Ors. [(2010) 5 SCALE 730], where the aforesaid that when principle even an was a issued urged enunciated. right to would a It was accrue

urged only

otherwise, order is

Government High in M.

servant. Court's

It was reliance

further on

that the

the observations

20 Nagaraj's case (supra), and the statement of the Advocate General that the exercise of collection of quantifiable data was not undertaken, is without basis on the ground data that showing the collection of and

quantifiable

backwardness

inadequacy of representation would only arise when the State wished reservation to exercise for its discretion Scheduled Tribes in and

making

Scheduled Castes candidates in matters of promotion and not in a case where reservation had already been made as far back as on 10.2.1975 and was

allowed to continue uninterruptedly. 20. Mr. Rao submitted that as far as the "Catch-up Principle" is concerned, the same had been deleted by the impugned notification dated 25.4.2008. first effect Notification from deleted the while said rule with some The

1.4.1997,

retaining

reservation in the form of a Proviso which too was ultimately deleted by the second Notification with effect from 28.12.2002. Mr. Rao also referred to

21 the observation made in M. Nagaraj's case could not be said that the equality that it code under

Articles 14, 15 and 16 was violated by the deletion of the "Catch-up" Rule. Mr. Rao submitted that

this declaration of the Constitution Bench had not been noticed by the High Court when it held that the two impugned notifications violated Articles 14 and 16 of the Constitution. 21. Mr. Rao also submitted that the doctrine of eclipse, as urged on behalf of the Petitioners, was not applicable to the facts of the case since after over-ruling the decision in General Manager,

Southern Railway Vs. Rangachari [(1962) 2 SCR 586], this Court had extended the life of the existing reservations for a period of five years.

Accordingly, the Government Order dated 10.2.1975 survived the decision in Indra Sawhney's case

(supra) and during the period of extension of five years, (4-A) Parliament in Article intervened 16 and inserted the State Clause to

empowering

22 continue reservations in promotions already made or to make such reservations, if not already made.

Mr. Rao urged that the 85th Amendment was enacted not merely to withdraw the Office Memorandum dated 31.1.1997, which gave effect to the catch-up rule, but to restore the benefit of consequential

seniority with retrospective effect from 17.6.1995 as if there never was any Catch-up Rule at all in the eye of law. Mr. Rao submitted that the

contention of the Petitioners that for the purpose of giving the benefit of consequential seniority, the State would have to undertake the collection of quantifiable data in regard to backwardness,

inadequacy of representation and non-impairment of efficiency, was based on a misunderstanding of the law declared in M. Nagaraja's case (supra), since it defeats the intent to of the Parliament to give (85th

retrospective

effect

Constitution

Amendment) Act.

23 22. In addition, it was pointed out that in

M. Nagaraj's case (supra) it had been categorically indicated that the concept of consequential

seniority did not violate the equality code under Articles 14, 15 and 16 by deleting the Catch-up Principle , as was held in Virpal Singh Chauhan's case (supra). It was submitted that the instant

case is a simple case of deletion of the Catch-up Principle Amendment) in view Act. of It the was Constitution contended (85th that the

provisional seniority list which was quashed by the High Court could never become the ground for any accrued right to seniority. 23. Appearing for the Intervenor, Rajasthan Vanijik Kar Anusuchit Jati-Janjati Mahasangh, hereinafter

referred to as "Mahasangh", Mr. Pallav Shishodia, learned Senior Advocate, reiterated Mr. Rao's

submissions regarding the observations made by this Court in paragraph 79 of M. Nagaraj's case that the concept of "Catch-up Rule" and "consequential

24 seniority" are judicially evolved concepts not

implicit in Clauses (1) and (4) of Article 16 of the Constitution and with the concept of equality contained in Articles 14, 15 and 16 stood violated by the deletion of the "Catch-up Rule". The

Constitution Bench also observed that such concepts were based on principles which could not be

elevated to the status of constitutional principles or constitutional limitations. that the deletion of of of 1997 28.12.2002 the Mr. Shishodia urged Proviso by way and added of the by the impugned merely

Amendment Notification

25.4.2008,

gave a quietus to the Catch-up Rule in harmony with the Constitution (85th Amendment) Act, which was

introduced with the specific object of negating the effect of the decisions of this Court in Virpal Singh Chauhan's case (supra), Ajit Singh-I's case (supra) and in Ajit Singh-II's case (supra). was submitted that since the 85th Amendment had been upheld by the constitution Bench in M. Nagaraj's It

25 case (supra) the State was duty bound to restore the original practice of giving seniority from the date of substantive appointment, without reference to the Catch-up Principle. 24. Mr. Shishodia concluded on the note that just as the repealing of an enactment would not

automatically revive the original Act, on the same analogy, impugned 25.4.2008 mere setting aside or dated revive the quashing of the and Rule While dated

Notification would not

28.12.2002 "Catch-up"

introduced by Notification dated 1.4.1997. the repeal of the two Notifications

28.12.2002 and 25.4.2008 removed the eclipse caused by the judgment in Ajit Singh-I's case (supra), Ram Prasad's case (supra) and Ajit Singh-II's case

(supra), no fresh right of consequent seniority was conferred. 25. Mr. M.L. Lahoti, learned Senior Advocate,

appearing for Respondent No.13 in SLP(C)No.6385 of

26 2010, while reiterating the submissions made on

behalf of the other Respondents, submitted that the question of reservation had been gone into in

detail in Indra Sawhney's case (supra) and it had been held that if a feeling of complacency relating to promotion was allowed reserved to prevail amongst it was

candidates

from the

categories,

bound to generate a feeling of despondency among candidates from the open categories which would

affect the efficiency of administration. also held that putting the members of the Backward Class on a fast track would lead to leap-frogging which could have disastrous effects on the moral of the candidates from the general

It was

candidates.

Learned counsel went on to submit that the 77th and 85th Constitutional Amendments were brought about in the Constitution case after and the judgment the in in Indra with and

Sawhney's power to

provided reservation

Government promotion

provide

consequential seniority.

Although, the same was

27 challenged in the All India Equality Forum's case, as also in M. Nagaraja's case, this Court upheld the constitutional validity of all the amendments, subject to compelling circumstances being fulfilled by the States. Mr. Lahoti also referred to the

contents of paragraph 123 of the judgment in M. Nagaraja's case (supra) which has been referred to hereinbefore, relating to the "extent of

reservation" to be made by the State Government. 26. Mr. several Lahoti submitted made that under in response the to

applications

Right to

Information Act, 2005, little or no information was supplied with regard to the population, education, public employment, private employment, self-

employment, below poverty line population and percapita income of Scheduled Tribes and Scheduled In fact, Commission for

Castes for the years 1951, 2001 and 2009. the response of the National

Scheduled Tribes was that they did not have the requisite data for all the information sought for.

28 27. Mr. Lahoti lastly contended that in the absence of any data in relation to Scheduled Castes and Scheduled Tribes, the parameters laid down in M. Nagaraja's case were not fulfilled and Rule 33 of the Rajasthan providing for Administrative consequential Service Rules, seniority, 1954

was

unconstitutional as no exercise had been undertaken by the State pursuant to Article 16(4-A) of the Constitution, and, as such it was not entitled to provide consequential seniority to Scheduled Castes and Scheduled Tribes employees. 28. Mr. M.R. Calla, learned Senior Advocate, who appeared for the sole Respondent, Mr. O.P. Harsh, in Special Leave Petition (Civil) No.7838 of 2010, contended that as far as his client was concerned, he was the Selection Scale promotee of the year 1991-92 and the judicial decision upholding his

position had attained finality and had nothing to do with the amendment of the rules or the

29 constitutional amendment with retrospective effect from 17th June, 1995. It was submitted that in his

case there was no question of any general category candidate gaining seniority over him once he had superseded them on the basis of merit in the year 1991-92. In other words, once a general category candidate, though initially senior to him, failed to compete against him in merit in the year 199192, he could not regain seniority over his client even year. if he had been promoted in any subsequent

Mr. Calla urged that when Shri Harsh had

been given the benefit of the "catch-up" rule in terms of the notification dated 1.4.1997, the

general category candidates, who were senior to him but had been superseded by him on the basis of merit in the year 1991-92 for the selection scale, had been wrongly placed above him. Mr. Calla

further submitted that such an act on the part of the Respondents having been challenged by Shri

Harsh in Writ Petition No.3136 of 2000, which was

30 allowed on 30th May, 2001 and the subsequent

challenge thereto before the Division Bench having been dismissed, the order dated 12.9.2001 of the learned Single Judge had attained finality. 29. Mr. Calla also referred to the decision of this Court in M. Nagaraj's case (supra) and submitted that despite the constitutional mandate to the

Government as per the 77th and 85th amendments, to form an opinion relating to adequate representation for exercise of the powers under Articles 16(4) and 16(4-A) of the Constitution, no such exercise had been undertaken by the State before exercising the enabling power. It was submitted that adequate

representation of candidates cannot be a constant factor for ever, but was variable for the purpose of providing adequate representation in the

services, as circumstances had changed after 1975. Mr. Calla submitted that the exercise for adequate representation was the most important factor for the Government to exercise its powers under Article

31 16(4) and 16(4-A) of the Constitution and the same could failure not to be avoided follow by the Government and the

the said

mandate

rendered the Mr. Calla

exercise of the enabling power invalid. submitted that the various data which came to be disclosed during the hearing of the matter, clearly show that Scheduled Castes and

Scheduled

Tribes

candidates were adequately represented and had at times even exceeded the quota and as such it was necessary ascertain for an exercise to of be undertaken such to

the representation

candidates.

Mr. Calla submitted that, in any event, since no injustice had been done to Scheduled Castes and

Scheduled Tribes candidates, the petitioners could have no legitimate cause for grievance with the

order of the High Court. 30. Dr. Rajeev Dhawan, learned Senior Advocate who appeared for the Respondent No.10 in Special Leave Petition (Civil) No.7716 of 2010, firstly contended that the main issue for decision in this case is

32 whether the conditions enumerated in M. Nagaraj's case (supra) applied to cases of seniority and

promotion after 17th June, 1995, from which date the amendments were declared to be valid in M.

Nagaraj's case (supra).

Dr. Dhawan submitted that

in M. Nagaraj's case (supra) this Court was called upon to consider the provisions of the Constitution (77th, 81st, 82nd and 85th Amendment) Acts relating to reservation in promotion, the principle of carry over, enabling and by preservation providing amending of for Article principles consequential 16(4-A) by of

efficiency seniority

substituting the words "in matters of promotion, with consequential seniority, to any class", in

place of the words "in matters of promotion to any class". Dr. Dhawan (85th submitted that Act, concept by the the

Constitution legislature

Amendment) the

2001, of

reintroduced

consequential seniority to any class in matters of promotion.

33 31. It was submitted that after the decision in Virpal Singh Chauhan's case (supra), the provisions relating to "catch-up" were discontinued and the protection which had been given against disputes of seniority 1.4.1997 by juniors by the notification was withdrawn, but with dated

a proviso of

maintaining the status-quo that was existing as on that date. 32. Dr. Dhawan contended that the exercise to be undertaken as per the directions in M. Nagaraj's case (supra) was mandatory and admittedly such an exercise had not been undertaken before grant of promotion. The Division Bench also held that the rights which had been preserved by virtue of the notifications dated 1.4.1997 and 28.12.2002 were

vested rights in favour of the writ petitioners and by the impugned judgment, the notifications dated 28.12.2002 and 25.4.2008 had been rightly quashed. Dr. Dhawan urged that by the notifications dated

34 1.4.1997 and 28.12.2002, the Government of

Rajasthan had protected the seniority and merit of candidates. The decision in M. Nagaraj's case made

a distinction between the existence and the width of the exercise of power under the amendments and validates the amendments subject to the exercise emanating from the above-mentioned principles. Dr. Dhawan submitted that the decision in M. Nagaraj's case did not automatically invalidate or validate any exercise between when the amendments were held to be valid, and 4.1.2000 from when consequential seniority was required to be considered in terms of such amendment. 33. It was submitted that since the State had not undertaken the exercise which was mandatory in

terms of the judgment in M. Nagaraj's case (supra), the State could not, either directly or indirectly, circumvent exercise by or ignore or refuse recourse to to the undertake the

taking

Constitution

35 (85th Amendment) Act providing for reservation in promotion with consequential seniority. 34. Dr. Dhawan urged that the powers conferred on the State under Articles 16(4), 16(4-A) and 16(1-B) of the Constitution are enabling in nature and the expression "consequential and not a requirement. seniority" was optional

Dr. Dhawan also urged that

what was restored by the decision in M. Nagaraj's case (supra) was merely the enabling power of the Government and exercise of such power in relation to consequential seniority by the State of

Rajasthan would still have to be reconsidered in accordance with the decision in M. Nagaraj's case (supra). 35. Dr. Dhawan submitted that the seniority of the candidates who had been promoted on merit was

protected by the notification dated 1.4.1997 and the same was required to be retained and the

contingent protection given by the notification of

36 28.12.2002 was also required to be retained, though the contingency in the last sentence of the Dr. restoration notification the exercise of of as

notification was liable to be struck down. Dhawan also urged seniority without in M. that in the the

consequential 25.4.2002, contemplated

conducting Nagaraj's

case (supra), was

liable to be struck down and if the State wanted to introduce a provision for consequential seniority, it would have to follow the procedure indicated in M. Nagaraj's case (supra). 36. The primary question which we are called upon to answer in these five Special Leave Petitions is whether the amended provisions of Article 16(4-A) of the Constitution intended that those belonging to the Scheduled Castes and Schedule Tribes

communities, who had been promoted against reserved quota, would also be entitled to consequential

seniority on account of such promotions, or would the "catch-up" rule prevail.

37 37. The said question has been the subject matter of different decisions of this Court, but the

discordant note was considered and explained by the Constitution Bench in M. Nagaraj's case (supra). On account their of reservation got the without those benefit any who of were junior to

seniors,

accelerated consideration,

promotions

other

including performance. Those who were senior to the persons category who were were promoted from in the the reserved of

not overlooked

matter

promotion on account of any inferiority in their work performance. It is only on account of

fortuitous circumstances that juniors who belong to the reserve category before were their promoted seniors could from be that

category

accommodated. 38. The question posts in Indra relating fell for to the reservation consideration case (supra) in of for

promotional this Court

Sawhney's

38 construction of Article 16(4) of the Constitution relating to the State's powers for making provision for reservation of appointments or posts in favour of any backward class of citizens, which in the opinion of the in State, services was under not the adequately State. The

represented

further question for determination was whether such power extended to promotional posts. answered the questions by holding This Court that Article

16(4) does not permit provision for reservation in the matter of promotion. Further, such rule was to

be given effect to only prospectively and would not affect the promotions already made, whether made on regular basis or on any other basis. apart from holding that Article Accordingly, 16(4) does not

permit provision for reservation in the matter of promotion, this Court also protected the promotees who had been appointed against reserved quotas and a direction reservations was are also provided given in that the wherever matter of

39 promotion, such reservation would continue in

operation for a period of five years from the date of the judgment. promotion was In other words, the right of protected only for a period of 5

years from the date of the judgment and would cease to have effect thereafter. 39. The matter did not end there. The Constitution

(77th Amendment) Act, 1995, came into force on 17th June, 1995. A subsequent question arose in the

case of Union of India vs. Virpal Singh Chauhan, [(1995) 6 SCC 684], accelerated promotion as to whether the benefit of through reservation or the

roster system would give such promotees seniority over general category promotees who were promoted subsequently. The said question arose in regard to

promotion of Railway Guards in non-selection posts by providing concession to Scheduled Castes and Scheduled Tribes candidates and it was sought to be contended that the reservation provided was not

only at the stage of initial appointment, but at

40 every stage of subsequent promotions. case, the Petitioners, who were general category candidates and the Respondents who were members of the Scheduled Castes and Scheduled Tribes were in the grade of Railway. Controller, Guards On 1st Grade `A' in 1986, the Northern the Chief general In the said

August, promoted

Tundla,

certain

category candidates on ad-hoc basis to Grade `A' Special. Within less then three months, however,

they were reverted and in their place members of the Scheduled promoted. illegal, Castes and Scheduled Tribes were

Complaining of such action as being arbitrary and unconstitutional, Virpal

Singh Chauhan and others moved the High Court, but the petition was transferred to the Central

Administrative Tribunal.

The Tribunal, inter alia,

held that persons who had been promoted by virtue of the application of roster would be given

accelerated promotion but not seniority, and that the seniority in a particular grade amongst the

41 incumbents grade entered initial would from Grade available be re-cast the `C' lower for promotion each grade time on to new the came the next

incumbents basis to be of

seniority.

This

recognized as the "catch-up" rule. The matter was brought to this Court by the Union of India and this Court confirmed the view taken by the

Tribunal. 40. The same view was reiterated in the case of Ajit held Singh further Januja's that case (supra) by wherein it was

accelerated Tribes

promotion and Backward

Scheduled

Castes/Scheduled

Class candidates could not supersede their seniors in the general category by accelerated promotion, simply because that their seniors in the general category had been promoted subsequently. It was

observed that balance has to be maintained vis-`vis reservation.

42 41. After the decision rendered in Virpal Singh

Chauhan's case (supra) and in Ajit Singh-I's case (supra), in which the claim of reserved category candidates in promotional posts with consequential seniority was negated, the question surfaced once again in the case of Jagdish Lal & Ors. Vs. State of Hayrana & Ors. [(1997) 6 SCC 538], where a Bench of Three Judges held for took that fixation a different the of recruitment seniority on view. rules according a post Their had to

Lordships provided length service. of

continuous

service

in the

Interpreting the said provisions, Their

Lordships held that in view of the said rules those Scheduled Castes and Scheduled Tribes candidates, who though had in the junior got to others in the general than their and

category, seniors

promotion

earlier

general

category

candidates

would, therefore, be entitled to get seniority with reference Lordships to the date that of the their promotion. Their by

held

general

candidates

43 relying on Virpal Singh Chauhan's case (supra) and Ajit Singh Januja's case (supra) could not derive any benefit therefrom. 42. This resulted in the vexed question being

referred to the Constitution Bench. Of the several cases taken up by the Constitution Bench, we are concerned with the decision rendered in the case of Ram Prasad vs. D.K. Vijay [(1999) 7 SCC 251] Ajit Singh-II & Ors. Vs. State of Punjab & Ors. [(1999) expressed 7 SCC in 209]. Jagdish Differing Lal's case with the views the and

(supra),

Constitution Bench in Ajit Singh-II's case (supra) affirmed the earlier decision in Virpal Singh

Chauhan's case (supra) and Ajit Singh Januja's case (supra) and overruled the views expressed in

Jagdish Lal's case (supra).

The constitution Bench

reiterated the views expressed in Ajit Singh-I's case (supra) benefit of that those who had promotion obtained should the not be

accelerated

reverted as that would cause hardship to them, but

44 they would not be entitled to claim seniority in the promotional cadre. view was expressed in Quite naturally, the same Ram Prasad's case (supra) In the decision Court in Ajit directed

which was also decided on the same day. said case, Singh-I's while case affirming (supra), the this

modification of the seniority lists which had been prepared earlier, to fall in line with the decision rendered in Ajit Singh-I's case (supra) Singh Chauhan's case (supra). 43. Thereafter, January, Constitution Act, 2001, consequential 2002, by in as mentioned the hereinbefore, amended on 4th the and Virpal

Parliament

the Constitution order seniority to restore to the

(85th Amendment) the reserved benefit of

category The

candidates with effect from 17th June, 1995. constitutional Amendment several Writ validity Acts was of both challenged including the in Constitution this the Court Writ

in

Petitions,

Petitions filed by M. Nagaraj and the All India

45 Equality Forum. The Constitution Bench while

considering the validity and interpretation as also the implementation of the Constitution (77th, 81st, 82nd and 85th Constitutional Amendment) Acts and the effect thereof on the decisions of this Court in matters relating to promotion in public employment and their application answered the with retrospective by upholding effect, the

reference

constitutional validity of the amendments, but with certain conditions. 44. The vital issue which fell for determination was whether by virtue of the implementation of the Constitutional Amendments, the power of Parliament was enlarged to such an extent so as to ignore all constitutional limitations and requirements.

Applying the "width" test and "identity" test, the Constitution Bench held that firstly it is the

width of the power under the impugned amendments introducing amended Articles 16(4-A) and 16(4-B)

that had to be tested.

Applying the said tests,

46 the Constitution Bench, of this after Court referring to the

various decisions

on the subject,

came to the conclusion that the Court has to be satisfied that the State had exercised its power in making reservation for Scheduled Castes and

Scheduled Tribes candidates in accordance with the mandate of Article which the State 335 of the Constitution, would have to for place

concerned

before the Court the requisite quantifiable data in each case and to satisfy the Court that such of Castes

reservation inadequacy and of

became

necessary of

on account Scheduled

representation Tribes

Scheduled

candidates

in a particular

class or classes of posts, without affecting the general efficiency of service. The Constitution

Bench went on to observe that the Constitutional equality is inherent in the rule of law. it's reach is limited because its primary concern is not with efficiency of the public law, but with its enforcement and application. The Constitution However,

47 Bench also observed that the width of the power and the power to amend together with its limitations, would have to be found in the Constitution itself. It was held that the extension of reservation would depend on the facts of each case. reservation was In case the

excessive, it would have to be

struck down. It was further held that the impugned Constitution Amendments, introducing Article 16(4A) and 16(4-B), had been inserted and flow from Article 16(4), but they do not alter the structure of Article 16(4) of the Constitution. wipe out any of the Constitutional They do not requirements

such as ceiling limit and the concept of creamy layer on one hand and Scheduled Castes and

Scheduled Tribes on the other hand, as was held in Indra Sawhney's case (supra). Ultimately, after

the entire exercise, the Constitution Bench held that the State is not bound to make reservation for Scheduled Castes and Scheduled Tribes candidates in matters of promotion but if it wished, it could

48 collect quantifiable data touching backwardness of the applicants and inadequacy of representation of that class in public employment for the purpose of compliance with Article 335 of the Constitution. 45. In effect, what has been decided in M.

Nagaraj's case (supra) is part recognition of the views (supra), expressed but in Virpal Singh same time Chauhan's upholding case the

at the

validity of the 77th, 81st, 82nd and 85th amendments on the ground that the concepts of "catch-up" rule and "consequential seniority" are judicially evolved

concepts and could not be elevated to the status of a constitutional beyond principle so as of to place them

the amending

power

the Parliament.

Accordingly, while upholding the validity of the said amendments, the Constitution Bench added that, in any event, the requirement of Articles 16(4-A) and 16(4-B) would have to be maintained and that in order to provide for reservation, if at all, the tests indicated in Article 16(4-A) and 16(4-B)

49 would have to be satisfied, which could only be achieved after an inquiry as to identity. 46. The position after the decision in M. Nagaraj's case (supra) is is that dependent reservation on the of posts inadequacy in of

promotion

representation of members of the Scheduled Castes and Scheduled to the Tribes condition and of Backward ascertaining Classes as to and

subject

whether such reservation was at all required. The view of the High Court is based on the decision in M. Nagaraj's case (supra) as no exercise was

undertaken in terms of Article 16(4-A) to acquire quantifiable data regarding the inadequacy of

representation of the Schedule Castes and Scheduled Tribes Rajasthan communities High Court in has public rightly services. quashed The the

notifications dated 28.12.2002 and 25.4.2008 issued by the State of Rajasthan and providing promotion Castes to for the

consequential members of the

seniority

Scheduled

and Scheduled

50 Tribes communities and the same does not call for any interference. Accordingly, the claim of

Petitioners Suraj Bhan Meena and Sriram Choradia in Special Leave Petition (Civil) No.6385 of 2010 will be subject to case the conditions (supra) and laid is down disposed Leave in M. of Petition

Nagaraj's accordingly.

Consequently,

Special

(C) Nos. 7716, 7717, 7826 and 7838 of 2010, filed by the State of Rajasthan, are also dismissed. 47. Having regard to the nature of the facts

involved, each party will bear its own cost.

................................................J. (ALTAMAS KABIR) ................................................J. (A.K. PATNAIK) New Delhi Dated: December 7, 2010